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August 5, 1957

Gilbert W. McINTOSH, Plaintiff,
CHICAGO EXPRESS, Inc., a corporation, Defendant

The opinion of the court was delivered by: FORMAN

This is a motion for summary judgment by Chicago Express, Inc., hereinafter referred to as Chicago, against Gilbert W. McIntosh for contribution under the New Jersey Joint Tortfeasors Contribution Act, N.J.S. 2A:53A-1, et seq. *fn1"

The parties to this action were parties to a suit arising out of a motor vehicle collision which occurred on October 30, 1954. Jurisdiction of this court was obtained by virtue of diversity of citizenship and damages alleged to be in excess of $ 3,000. One Virginia Thompson, a passenger in the McIntosh vehicle, also sued Chicago, but did not sue McIntosh. Chicago, in count one of an amended counterclaim, sued McIntosh for damages to its vehicle, and joined him, in count two of the amended counterclaim, as a party defendant to the Thompson suit, and for contribution under the provisions of the Joint Tortfeasors Contribution Act. McIntosh's answer to the amended counterclaim denied any negligence of his own, and asserted that Chicago was either solely or contributorily negligent.

 The cases were consolidated for trial, and at the trial, a motion by Chicago to sever count two of its amended counterclaim, to which consent was given by McIntosh, was granted.

 The jury returned a verdict of no cause for action in the claims of both McIntosh and Chicago against each other, but returned a verdict of $ 22,500 on behalf of Virginia Thompson against Chicago. The judgment has been satisfied, and Chicago now demands from McIntosh, under the severed count two of the amended counterclaim, $ 11,311,89, representing one-half of the total judgment and costs as McIntosh's contributing share as a joint tortfeasor.

 It is the contention of Chicago that the jury verdict of no cause for action as between McIntosh and Chicago was, in effect, a finding that both McIntosh and Chicago were negligent, and that they were both joint tortfeasors with respect to the claim of Virginia Thompson. This contention is denied by McIntosh, claiming, initially, that the jury verdict did not necessarily find contributory negligence; and secondly, that he has not had a trial of the issue of his liability to Virginia Thompson, and that the jury verdict of no cause for action by McIntosh against Chicago was not res adjudicata of the issue of his laibility to Virginia Thompson, a finding of which would be necessary to support a judgment for contribution.

 Both Mc Intosh and Chicago rely on Sattelberger v. Telep, 1954, 14 N.J. 353, 102 A.2d 577. In that case, both plaintiff and defendant had originally been defendants in a negligence action, in the course of which the suit against Telep was dismissed by the court on the ground that the complaint had failed to state a cause of action against him. Judgment was rendered against Sattelberger, which he satisfied, and then proceeded against Telep under the Joint Tortfeasors Contribution Act. This action was dismissed in the trial court on the theory that the Joint Tortfeasors Contribution Act could be invoked only when the defendant in the contribution suit had been previously found to have been a joint tortfeasor.

 On appeal, the New Jersey Supreme Court reversed the trial court, and held that suit under the Joint Tortfeasors Contribution Act did not require a prior determination of defendant's liability. The court did observe, however, that contribution must be predicated upon a determination of liability arrived at after the party sued had been accorded his full legal process, attendant with all constitutional safeguards, saying the following, 14 N.J. at page 366, 102 A.2d at page 583:

 '* * * the statutory obligation of contribution is not confined to the judgment defendants in the principal proceeding. By explicit terms it is extended to all participants in the joint wrongdoing, whether there has been judgment against all or some of them; and it is fundamental in the statutory scheme that a joint tortfeasor not impleaded in the principal action, and so not a party to the basic judgment shall not be liable to contribution under the statute until his liability in tort has been established by judgment in a proceeding comporting with the immutable principles of individual right and justice that are comprehended in the term 'due process', including the constitutional right of trial by jury, as if he were a party defendant to the action in which judgment was had against the contribution claimant. It is fundamental that as to the asserted prerequisite liability in tort, the contribution proceeding is to be treated as if it were an action for damages by the injured party against the defendant from whom contribution is claimed. The defendant in contribution is not concluded by the judgment in the principal action to which he was not a party.'

 Additionally, in the same opinion, 14 N.J. at page 367, 102 A.2d at page 584, the court quoted the following from an opinion by Justice Brandeis:

 "The right to sue for contribution does not depend upon a prior determination that the defendants are liable. Whether they are liable is the matter to be decided in the suit. To recover a plaintiff must prove both that there was a common burden of debt and that he has, as between himself and the defendants, paid more than his fair share of the common obligation. Every defendant may, of course, set up any defense personal to him.' Phillips-Jones Corporation v. Parmley, 1937, 302 U.S. 233, 58 S. Ct. 197, 82 L. Ed. 221.'

 It is thus apparent that if the fact determination of Mc Intosh's liability has not been adjudicated, no summary judgment could issue. Attention must therefore be directed to Chicago's assertion that Mc Intosh's joint liability had been determined in the prior litigation, for, as it is stated in Sattelberger v. Telep, supra, 14 N.J. at page 367, 102 A.2d at page 584:

 '* * * it is incumbent on the contribution claimant in a case such as this to establish a common liability for the wrongful act, neglect or default made the basis of the judgment and the quantum of the damages ensuing from the joint offense.' (Emphasis supplied.)

 It will be remembered that the jury returned verdicts of 'no cause for action' on both the claim and counterclaim of Mc Intosh and Chicago. Both parties in their answers urged contributory negligence as a defense, as well as non- negligence. The jury verdict has the effect of finding both parties culpable of contributory negligence. See Kelley v. Curtiss, 1954, 16 N.J. 265, 108 A.2d 431.

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